Long v. Stapp

| Mo. | Mar 15, 1872

Adams, Judge,

delivered the opinion of the court.

This was an action of ejectment commenced in St. Francois county, where the land lies, and taken by change of venue to Iron county.

The plaintiff claimed title to one undivided half of the north half of 640 acres, known as survey No. 2111, originally confirmed to Isaac Jackson and Stephen Evans. The plaintiff set forth his title in his petition at length, and exhibited the deeds and transfers under which he claimed title to an undivided half, or 160 acres, of the north half of the above survey.

The evidence showed that there had been a partition between Jackson and Evans, by which Jackson took the south half .and Evans the north half of the survey. A paper signed by Evans showed the agreement for partition, the partition itself being by parol, and made prior to 1810. The plaintiff then, by various deeds and transfers-, shows title to the undivided half of the north half of said survey. Among the title papers was an assignment on the back of one of the deeds by the owner of all his interests “in the within conveyance,” dated April 30, 1810, without seal.

The plaintiff claimed that he was a tenant in common with the defendant. The defendant’s paper title showed that he was the legal owner of 480 acres of said survey — that is, he owned the south half, being 320 acres, and an undivided half of the north half, equal to 160 acres.

The defendant set up the statute of limitations, but there was ho actual ouster or sufficient denial of the plaintiff’s title and those under whom he claimed until 1858, when the defendant took a conveyance from his grantor, assuming to convey to him as sole owner the entire 640 acres. This amounted to an ouster of his co-tenant, and the statute commenced running from that time. This suit, however, was commenced in 1860, and of course the plaintiff was not barred by the statute of limitations, as only two years had elapsed, and the statute requires ten years’ adverse possession to constitute a bar. The case was submitted to the court, sitting as a jury, and a verdict and judgment were given for plaintiff for the undivided half of the north half of said survey, equal to 160 acres. During the progress of the trial, after each deed and paper were read in evidence by the plaintiff, the defendant objected to its competency and relevancy. This objection did not extend to the proof of the execution of such deeds and papers ; they had already been read without objection, and we are now to consider whether they were competent, assuming that their execution by the proper parties had been duly proven.

These papers constitute the plaintiff’s claim of title, and if the title was conveyed by them, they were competent and necessary evidence for him. One objection urged against this claim of title is that the partition was by parol, and that one of the instruments in the plaintiff ?s claim of title was an assignment not under seal, written on the deed which conveyed the title to the assignor. It will be observed that the parol partition and the assignment referred to were made in 1810 and prior thereto, and that up to 1816 the Spanish laws and customs were in force in the territory of Missouri, in regard to the transmission of titles to real estate. Under those laws a deed was not necessary to convey the legal title. Any instrument showing the intention of the grantor to pass the title, whether under seal or not, was sufficient. (See Moss v. Anderson, 7 Mo. 337" court="Mo." date_filed="1842-05-15" href="https://app.midpage.ai/document/moss-v-anderson-6610592?utm_source=webapp" opinion_id="6610592">7 Mo. 337; Mitchell v. Tucker, 10 Mo. 260" court="Mo." date_filed="1846-07-15" href="https://app.midpage.ai/document/mitchell-v-tuckers-6611851?utm_source=webapp" opinion_id="6611851">10 Mo. 260.) Since the introduction of the common law, and the enactment of the statute of frauds and perjuries in 1816, lands cannot be conveyed except by deeds in this country. The same thing may be said in regard to the parol partition. It was good under the Spanish laws, even if possession had not been, taken under it.

It was also objected that some of the plaintiff’s title papers had ' not been duly acknowledged and recorded. So far as the defendant is concerned, this objection is untenable. It is not pretended that he holds by purchase from the same grantor the undivided interest claimed by the plaintiff. Hence he cannot set up that he was a purchaser of this undivided interest for a valuable consideration and without notice.

■ These instruments were good to pass the title to plaintiff, whether recorded or not.

I find no substantial objection to the instructions declaring the ■ law of this case. Upon the whole record, I think the judgment was for the right party.

Judgment affirmed.

The other judges concur.